from the government-created-'ad-blindness' dept

The government's neverending quest to make America "safer" has turned on itself, making Americans less safe. This isn't solely an issue with the government's obsession with "security," although that is a large part of it. It's the constant onslaught of warning messages, applied to nearly every product sold by retailers and any area frequented by the public. Most of the warnings are of the CYA variety. These are used to deflect future legal complications and satisfy the endless requests of regulators.

Nearly every product sold in California contains this warning label. And it's not just products. A majority of businesses in California feature signage containing this warning. (One example: a parking garage may have to post the warning sign because of the exhaust cars produce.) This has led to Californians ignoring the label completely, even if the product in question actually contains harmful substances. Why? Because the warning label is omnipresent. If something's everywhere, on everything, it's obviously meaningless. (The old adage: if everyone's special then no one's special applies here.)

Californians have learned to ignore Proposition 65 labels because they are white noise: they don't communicate anything about degrees of danger or probabilities.

The problem here is created by the government itself. By declaring a majority of places and products "dangerous," it has lessened the effectiveness of the labels. This sort of self-defeating behavior goes much further than product labeling. It also carries over into other areas controlled by the government, undermining various agencies' non-stop efforts to portray this country as being in imminent danger at all times.

When I went through the San Jose airport Saturday morning in a long line at TSA, we passengers were subjected to John Pistole's warning, on an infinite loop, of the dangers of terrorism. We've all seen enough to know that it's not that dangerous. So we tend to ignore government warnings.

The government wants to be taken seriously and yet, it can't help but get in its own way. It gets in its own way because it wants to micromanage the lives of Americans. It loves control. It "knows better." On the rare occasion the government has something important to communicate, it can't find many people willing to grant it much credulity.

So when there really is a high-probability threat and the government warns us, we tend to dismiss that too. Government cries wolf way too often.

If the Homeland Security Advisory System moves from "elevated" to "high," is that up or down in terms of severity? Does anyone outside of the DHS know or even care? If we suddenly went to "severe," would it affect the daily lives of Americans outside of more hassles at airport checkpoints? The public doesn't really seem to know what these phrases mean in terms of an actual threat. And most Americans have long since stopped caring about "yellow alerts" or "orange alerts." It's meaningless and it conveys no useful information.

How meaningless? The alert system has never dropped below Yellow ("Heightened" [as compared to what?]) in its existence. (We have always been at war with terror.) In fact, a 2009 Task Force report suggested removing the two lowest tiers and making "Heightened" the baseline. If that's the baseline, then the government has won and the terrorists have won. Americans will remain awash in a sea of government-generated ambiance just loud enough to be noticeable but not annoying enough to grant it their full attention. It's a steady supply of junk "info" that generates resigned complacency, rather than heightened vigilance, and it does little more than make the government feel better about its monotonous efforts.

from the if-they-don't-want-it,-it's-not-good dept

In the internet media and advertising worlds these days, there's been a lot of talk about so-called "native advertising." This is advertising that is "native to the medium" or which fits within the framework of the site or service, rather than being off to the side, flashing away, hoping for attention. Depending on who you talk to, this is either wonderful and innovative, or horrible and the end of all things good in the world of media. On the plus side, people talk about how native advertising can be less annoying, less intrusive and more full of actual content than the alternatives. On the negative side, you hear talk of "advertorials," the possibility of "tricking" readers and the breakdown of advertising and editorial independence.

I am, of course, not a neutral observer. As a site, we have engaged in what is now called "native advertising" in some form or another since way before it was ever called that. Over the past few years, we have partnered with various companies in the hope that they would be able to convince marketers and advertisers of the value of this. It was four years ago that we began writing our series of posts on why advertising is content and content is advertising.

Most recently, a few months back, we ended the last of our exclusive partnerships with various advertising firms and sought to go out on our own. One of the issues was that when working with partners, they were often looking to sell something for a bunch of sites, rather than focusing on what we could do specifically. And when you do that, you're not really looking to be "native" to the audience in question, because you're still looking for that scale. To some extent, we felt that we were losing ground in not being able to really work directly with advertisers to do the more compelling programs that our community wants.

And this, I think, is the key point that is often lost in the debates about native advertising. The site Digiday recently asked a bunch of publishers how they define "native advertising," and, frankly, I think they all miss the most central component to it: truly native advertising is advertising that people want to experience. It's not just about integrating the experience into the area where people normally look for content. It's about making the advertising itself as compelling (if not more compelling) than any other content on a site.

Too many people automatically assume that this is impossible or that we're talking about some sort of advertorial or "tricking" people. We're talking about the opposite of that. We're talking about content that is so good, and so valuable, that the community finds it useful and compelling even when they know it's sponsored or advertising. There are, of course, plenty of examples of this happening in other contexts. A very large percentage of people watch the Super Bowl more for the commercials than for the games. They know they're watching advertising. But they like it, because the commercials themselves are entertaining (perhaps more entertaining than the game). Remember how many people watched that Old Spice "I'm on a horse" video a few years back? And, these days, lots of folks have been passing around Kmart's "ship your pants" ad, not because they're being tricked, but because it's funny and they like it.

When done correctly with online publications, the end result of all this should be a win for the community (they get more content they want), the advertiser (they get the attention of a valuable community) and the publisher (they get to provide more valuable content and they can stay in business). There is no intrusion. There is no trickery. There is no giving people what they don't want.

Of course, this isn't always easy. An advertiser might not have something that a community wants. Though, in that case, it often seems like there are interesting ways to team up to deliver what people want. Buzzfeed, for example, does this by having its own editorial folks work with advertisers to produce content that people might appreciate - such as "top 10 lists" that are just as good as any other content on that site - but which comes from a marketer like Virgin America or Canon.

We, too, are striving to bring more such content to our site, which we hope you'll find valuable. For example, we recently started an advertising relationship with the App Developers Alliance, a trade group that represents application developers, helping them to be more productive, and helping push back against things that get in their way, such as patent trolls. As a part of this relationship, you can see things like the content widget in our side bar to the right. Here's a screenshot of it (or just look at the actual interactive one just one column over!).

This is a "sponsored" widget that we developed for the Alliance, highlighting and linking back to some of the content on their own DevsBuild.it site. As you can see, it's all pretty relevant and interesting content for anyone who's an app developer, or who's interested in these general things. We think it's pretty awesome. There is nothing "advertorial" about it. There's nothing "sneaky" about it. It's just a bunch of really useful content that we think many of you will find useful too. In the end, you get more useful content that you want, the App Developers Alliance gets more people aware of the excellent work that they're doing and we get to continue publishing. It's a true win-win-win situation that doesn't involve anything annoying or intrusive or irrelevant. And, of course, it's all clearly disclosed.

We'll also be working with them on a series of sponsored posts where, again, the focus will be entirely on content that is valuable to the folks who make up the Techdirt community.

I recognize that this still will upset some, who insist that any advertising is a horrible thing. Frankly, I can't understand that thinking, and it doesn't make any sense at all. As we said from the beginning, all content, by itself, is advertising too. If you're reading any post on this site, you're reading advertising. It's advertising for this site, for the wider Techdirt community, for us as a company, for me as a writer, and for everything else that we do. In fact, each post and the ensuing discussion is a form of advertising. When you comment on the site, you're a part of that process as well.

Frederic Filloux recently wrote that there's no reason to complain about native advertising if it's properly disclosed. I'd take that one step further. There's no reason to complain about native advertising if it's properly disclosed andif the content is good and valuable to the community.

It's a high bar to reach -- and I actually think most of the complaints about native advertising to date have really been about the lack of understanding of that final point. People don't like native advertising when the content itself is bad and not relevant -- like when Scientology posts some lame babble on The Atlantic. Make it good, useful and relevant, and no one cares that it's also advertising. The problem is just how difficult it is to make it good. Still, I think as people start to figure out that the central facet of truly native advertising is that it's content that people want, they'll start to get past many of the problems that some people have with native advertising campaigns today.

On that note, of course, we are looking for companies who believe in this vision as well, and who want to work with us to build compelling campaigns that not only get you attention, but which also provide the community here with value that they appreciate. Please contact us if you're interested.

from the first-amendment,-brother dept

Gawker has been in a legal fight with Hulk Hogan, who was upset that they posted a brief clip (about 1 minute out of 30 minutes) of a sex tape involving Hogan and Heather Clem, the wife of one of Hogan's friends. Hogan claims that he didn't know he was being filmed at the time. His initial lawsuit, for $100 million, had a huge number of questionable claims and a federal court ruled against Hogan pretty quickly, pointing out that Gawker was protected by the First Amendment. Hogan then tried strategy two, which was suing in state court in Florida under a particular state law. Somewhat amazingly, the judge in that case has now granting an injunction against Gawker's post, but made it so incredibly broad that it effectively demanded not just the takedown of the video, but the entire post, written by A.J. Daulerio (which was about the whole concept of celebrity sex tapes, rather than just about the Hulk Hogan video) and all of the comments on that post.

It's unfortunate when state courts seem to go out on a limb like this, and Gawker has decided that the ruling is so ridiculous that it's refusing to take down the post, though it did agree to take down the video clip (again, which was just a very small portion, which is why the federal judge had argued it was protected by fair use). In the Florida case, Hogan is claiming that the publication of the video was an invasion of privacy. Even if that's true -- and it seems like a stretch -- to the go even further and order the entire commentary be taken down as well is extreme and clearly beyond the First Amendment. Amazingly, the judge also determined that a preliminary injunction was appropriate without even looking at the video in question!

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend's ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell's order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

In the Gawker post, they demonstrate segments from the transcript where it appears the judge is quite unfamiliar with the basic concepts of freedom of speech, and the fact that it extends beyond what someone is verbally saying out loud. For example, she expresses confusion over what "free speech" issue there even is and asks Gawker's lawyer if it's the "speech" between Hogan and the woman he's having sex with, and then being confused when the lawyer points out he's talking about the written report about it.

The injunction really does seem to go against pretty much all First Amendment case law. Furthermore, on the question of comments from others, the ruling seems to completely ignore Section 230 of the CDA as well, which clearly says Gawker is not liable for those comments. While the subject matter here may be a bit crazy, the ruling is serious... and seriously problematic for those who believe in free speech.

from the urls-we-dig-up dept

So far, we've mostly avoided a Malthusian catastrophe, but the human population is likely to grow to about 9 billion by 2050 (or somewhere between 7.5 and 10.5 billion, depending on your estimates). By that time, huge cities could house enormous populations, but the resources to feed all those people might need to be shipped in from vast farmlands. Who knows, maybe there will be some suburban middle ground where billions of people live near locally-produced agriculture. Vertical farming technologies could make it possible to grow food without acres and acres of land. Here are just a few links on some futuristic farming techniques.

from the protect-your-data dept

Courts have gone back and forth over the years concerning whether or not being forced to give up your password to reveal encrypted data is a violation of the Fifth Amendment. Now there's been yet another decision saying that someone cannot be forced to give up their password, because it likely violates their Fifth Amendment rights.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

It's definitely a good thing to see courts getting this right. Being forced to give up your passwords and encryption is quite a slippery slope. It's good to see judges pushing back.

In March, the exchange group sealed plans to pay out $62 million to compensate customers for technical errors in the May 2012 Facebook offering, and set aside $10 million in anticipation of settling a regulatory investigation into Nasdaq’s handling of the episode.

The head of Nasdaq OMX Group Inc. said Wednesday that the exchange operator had made “great progress” in addressing the problems it had handling last year’s flotation of Facebook Inc….

Mr. Greifeld said in an interview that Nasdaq had improved the way the exchange develops its market software following recommendations by International Business Machines Corp., which it hired to review its internal systems after the problems with Facebook. Nasdaq also reorganized its technology management.

“When you think about what we’ve accomplished in the past year, it’s impressive,” Mr. Greifeld said.

from the doing-it-wrong dept

Companies using DMCA claims as censorship typically fall into one of two categories. Either the company thinks it's somehow losing money over posted content, or they are looking to silence crticism. This is a story about the latter and how the attempt Streisand-apulted (this should undoubtedly be a word) CipherCloud into an internet frenzy over how the company achieves the encryption they purport to do.

For the purposes of background, CipherCloud runs an online service for encrypting any data that is stored in other cloud-based services, such as public email systems or CRM. It's essentially a promise to make your cloud data private. As adoption of cloud-based services continues to progress, this would seemingly be a valuable service to use, assuming it works as well as they claim. The problem is that the company doesn't get into many specifics over how they achieve any of this, leaving it to internet forums like StackExchange and their users to try and figure it out. That particular string covers a technical but important question raised by a forum member last August.

Last August, when someone posted a question about CipherCloud’s service to StackExchange, a popular question and answer site for software developers. “How is CipherCloud doing homomorphic encryption?” the question read.

That’s a geeky question, but an honest one. CipherCloud’s service is designed to encrypt data stored in exiting online applications without hampering the way these applications operate, and that’s not an easy thing to do. If you encrypt a collection of data, for instance, you may have trouble searching that data. One solution is a technique called “homomorphic encryption,” which would let users manipulate encrypted data as if it wasn’t encrypted — and that’s what the question was getting at.

The question received several answers, with the consensus being that the service likely was not doing homomorphic encryption, since that's a technology that isn't really ready for wider use as of yet. Instead, forum users posted a CipherCloud white paper, a corporate promotional video, and a presentation from a security conference by the company to try to figure out exactly what CipherCloud's service was doing. Most of them settled on the idea that deterministic encryption was being done instead. That technique is generally considered a weak form of encryption. And there the post sat for months. And months. Mostly unnoticed.

Until, that is, CipherCloud decided to see how badly they could shoot themselves in their own feet.

On Saturday, the company sent a DMCA takedown notice and defamation complaint to StackExchange. With its letter, CipherCloud complained that StackExchange users violated its intellectual property in posting its marketing materials to the site and that defamed its operation in misrepresenting the way its technology works. The users guessed that CipherCloud used something called deterministic encryption, a relatively weak form of security. The company said this is not the case, pointing out that one of the posters, Sid Shetye, is the CEO of CipherDb, a company that competes with CipherCloud in some ways.

A couple things here. It's difficult to understand how a defamation case works when the forum posts made it clear they were simply speculating based on the marketing material at hand. That's not defamation. Secondly, the idea of sending a copyright takedown notice over marketing material may just be the most ridiculous thing I've ever heard. The entire point of marketing is to spread it as far and wide as possible. Using the DMCA notice this way makes it clear that this isn't about copyright at all, but rather about silencing criticism or, in this case, speculation (which is worse, by the way).

And, finally, it's fun to note that this move will ultimately fail in both the legal realm and in purpose. The EFF has already weighed in, stating that it's clear that use of the marketing material fell under Fair Use and that the defamation claim is laughably without merit.

“I don’t think there’s a court in the country that would hold [the posters] liable for defamation,” [Corynne McSherry of the EFF] says. And if CipherCloud did try to bring defamation charges against the users, she says, the company could be exposed to a potential counter suit under SLAPP laws, which are designed to prevent individuals or companies from using bogus lawsuits to silence critics.

Of course, this previously little-heard-of forum and the questions it posed have now been splashed all over Reddit, Slashdot, Hacker News, and now here. All over a meritless DMCA notice for a forum half a year old. Well done, CipherCloud.

Disclosed are systems and methods for preventing (or at least deterring) a user from inadvertently or directly consuming illegal content on the Internet. For example, determine when a user might visit a site distributing illegal content (i.e., material in violation of a copyright or otherwise inappropriately distributed) and presenting a warning to the user prior to navigating to the identified inappropriate distribution site.

Of course, there are a couple of big issues here. First, who determines whether content is illegal? As Techdirt has reported many times, the only people who can give a definitive answer are judges: anything else is likely to be plagued with errors and arbitrary decisions. Since an ad-hoc system would naturally err on the side of caution, this would inevitably lead to perfectly legitimate sites being miscategorized and thus starved of visitors.

Secondly, even leaving aside that issue, how will the McAfee system "determine" when a user might be visiting a site distributing allegedly illegal content? The patent application describes one particularly dangerous approach:

Various embodiments, described in more detail below, provide a technique for performing a check of a distribution source prior to allowing its content to be downloaded. The implementation could utilize a "cloud" of resources for centralized analysis. Individual download requests interacting with the cloud need not be concerned with the internal structure of resources in the cloud and can participate in a coordinated manner to distinguish potential threatening "rouge hosts" and "authorized distributions" on the Internet.

As that makes clear, the proposed system would basically spy on everything you type into your Web browser, sending off full details of your requests to the cloud for analysis, where they would be checked in some way -- for example, against blacklists or whitelists. The results of that check would be sent back to your system, which might then place suitably dire warnings on your screen about the dangers of proceeding.

Clearly, that is a gross violation of privacy, with huge potential dangers. For a start, the centralized analysis system that the McAfee patent speaks of would be the perfect place to check up on everything that a person was doing on their computer, since all Internet requests would be routed through it. That makes it even easier than it is today for the authorities, who would no longer have to go to several Internet service companies in order to spy on users without the latter being aware of the fact.

Naturally, such issues of censorship and surveillance wouldn't worry the copyright companies in the slightest. If such a system were available, they would doubtless push hard for ISPs to adopt it -- perhaps on a purely "voluntary" basis, just like the new "six strikes" system in the US. Indeed, I'd be surprised if they aren't already having discussions with McAfee on how they can work together for their mutual benefit here.

from the net-neutrality-is-for-other-people dept

It appears that Deutsche Telekom has decided that it can and should ignore the basic principles of net neutrality. It is setting up limits on how much traffic its customers can use, and saying that competitors' video products will automatically be throttled to 384k, which makes them basically useless. But, of course, this throttling does not apply to Deutsche Telekom's own video offerings.

The data traffic generated by the use of Telekom' own IPTV platform Entertain won't be attributed to the volume integrated in the tariffs. "With Entertain, customers book television. We will therefore ensure that they will not suddenly sit in front of a black screen," explained Hagspihl. Also, voice telephony through Telekom's fixed line subscription will be excluded.

But... competitors? Well, too bad. This is a fairly bold move by DT. Of course, telcos have long wanted to do this, trying to force people and lock them in to their own (often overprice and underpowered) services, but to directly punish competitors is a pretty blatant statement by Deutsche Telekom that it thinks it can get away with this because of its dominant position in the market. Of course, if I'm a Deutsche Telekom customer, I'd be incredibly pissed off that Deutsche Telekom is basically telling me that I'll be penalized for using other video or voice services, even if they're better. Yes, those competing services will work fine beneath a certain traffic level, but people don't realize just how much data they often use these days -- especially when you're talking about bandwidth-heavy video.

Deutsche Telekom's explanation for this is almost entirely bogus.

"We want to continue offering our customers the best network in future into which we invest billions of euros. However, constantly increasing bandwidths can't be financed through constantly dropping prices. We will have to charge customers with very high data consumption more in future," said Michael Hagspihl, managing director marketing at Telekom Deutschland.

First of all, broadband remains an incredibly profitable business, and while the telcos love to make these claims, they're simply not supported by the data. They're making money like crazy on their existing networks, and although keeping up with the growth in bandwidth does require some investment, it's easily affordable under the current structure. What this is about is exactly what everyone knows: killing off competitors, limiting the market from disruption and trying to control these other services, like video and voice, so that people are forced into using Deutsche Telekom's own services.

In fact, Deutsche Telekom's CEO more or less shows off the standard hubris of telco execs these days, believing that the only thing that's important on the internet is his network, and everything else you get is only because of him:

Uh, I think you mean that without your monopoly power over the network people wouldn't have to use your lines to reach those services, which is what they really want. The "value" here that people get isn't Deutsche Telekom. They supply the pipes. The value is in all of the various services available, and Deutsche Telekom is trying to make those useless... oh, unless, those service providers want to pay up. It's the same old net neutrality story. The telcos overvalue their networks and they try to get paid twice for the same thing. They want customers to pay to reach Google and Google to pay to reach the customers.

Economic Minister Philipp Rösler voiced concern in a letter to Telekom's CEO Rene Obermann on Wednesday, a copy of which Spiegel Online obtained.

In the letter, Rösler warned of possible restrictions for "flat rate" customers. He said Federal government and consumer protection authorities would "follow very carefully further developments in relation to the varying treatment of Telekom's own services, and that of others, in terms of network neutrality."

Federal Consumer Protection Minister Ilse Aigner also criticized the new policy in an interview with Spiegel Online. "At first glance, progress for the customer can not be seen," she said. "Limiting flat rates is certainly not consumer-friendly," the Bavarian conservative CSU minister said.

Deutsche Telekom has its dominant position in the market because until not that long ago it was the state owned telecom provider. Trying to block out competitors with bogus excuses and limitations for consumers certainly seems like a pretty big abuse of that position.

from the cybersecurity,-the-sequel dept

It's really looking like the cybersecurity legislation fight for 2013 is merely a remake of the 2012 edition. First, the House passes CISPA in April, despite widespread privacy concerns (and CISPA's backers pretending they've taken care of them). Then, the Senate goes in a totally different direction with a bigger, more complex cybersecurity bill (last year there were multiple versions before the compromise Cybersecurity Act became the bill of choice) that at least (eventually, with amendments) is a little more conscious of privacy issues, but which then fails to pass the Senate because the Chamber of Commerce freaks out about "something something regulations." And, then cybersecurity regulations, CISPA and all, die out until the following year. At least the first part of that, with CISPA happened both years, and now the Senate has made clear that it's going in its own direction again in part because it feels that CISPA does not do enough to protect privacy (whether or not that's the real reason is left open to speculation). Who knows if the rest of the script will play out the same, or if the sequel will have some plot-defying twists. Either way, it seems pretty clear that CISPA, as written, is officially stalled out. And that's a good thing, though we'll be paying close attention to what comes out of the Senate in the months ahead.

These Principles seek to establish a framework which can be used to ensure firstly, that the right to freedom of expression and the ability to share knowledge and culture are fully protected in the digital age; and secondly, that copyright interests do not unduly restrict them. The Principles also seek to promote positive measures which foster both the free flow of information and ideas and greater access to knowledge and culture on the Internet and beyond.

The Principles were developed as a result of concerns that the fundamental human right to freedom of expression, guaranteed in UN and regional human rights instruments and nearly every national constitution, has been increasingly eroded on the grounds of protecting copyright. The Internet has been at the centre of an alarming expansion of copyright claims at the expense of freedom of expression and, more generally, the protection of human rights. These Principles affirm that the right to freedom of expression and the free flow of information and ideas cannot be seen as marginal to such developments.

Freedom of expression – that is, the freedom of all people to seek, receive and impart information and ideas of all kinds - is the foundation of diversity within cultural expression, creativity and innovation. It is, therefore, an essential part of the right to participate freely in the cultural life of society, enjoying the arts and sharing in scientific advancement: the very benefits that copyright exists to promote.

The full document is well worth a read. It's available in a variety of languages, though I've embedded the English version below. It is truly unfortunate that, over the years, certain copyright maximalists have increasingly used copyright as a tool to stifle free speech and to lock up speech, when, as the principles note, its purpose is supposed to be to encourage and enable more speech. If we start from that principle, we can start to look more closely at what a more reasonable policy might look like, and it's great to see the folks at Article 19 jumping into the fray.

Along those lines, it is rather silly to see something like "World Intellectual Property Day," because "intellectual property" -- or, more specifically, patents, copyrights and trademarks (leaving aside the other smaller categories) -- should never be seen as an end in and of itself, or something to celebrate in and of itself. The point (officially speaking, though some argue there were truly ulterior motives) from the beginning in the US was supposed to be that it would be a tool to "promote the progress" (with copyright and patents) or to act as a form of consumer protection (with trademarks). Tragically, we've strayed far from those ideals, where the concept of locking up and shutting down ideas, expression and the like is considered a perfectly reasonable action under today's laws, in part because the pursuit of "intellectual property" for the sake of "intellectual property." It is this distortion that is such a big part of the problem in the various debates held on the topic. Moving us back to some basic principles of free speech and looking at what best promotes free speech, open expression and creativity seems like a very good idea, rather than automatically assuming that "intellectual property" itself is the goal.

from the shameful dept

We've talked many times about how patents are often used as weapons to kill innovative startups that threaten legacy players. Ryan alerts us to a perfect example of this in practice. 1-800-CONTACTS, the giant online contact lens/glasses space, is trying to kill off an upstart innovative competitor called Ditto. And, no, this is not a case of Ditto copying something that 1-800-CONTACTS invented. The details are astounding. First of all, Ditto's main innovation is doing something that 1-800-CONTACTS does not do (though it has since announced plans to introduce something similar), which is to let buyers of glasses take a quick webcam video of their face, and then be able to see what they would look like in various pairs of glasses. That's pretty cool. The 15 person startup got some funding for this... and then promptly got sued by the bigger company. And 1-800-CONTACTS' actions in this case show that it set out, deliberately, to kill off this innovative startup:

It appears that 1-800-CONTACTS' CEO went onto Ditto's website the very day it launched, presumably to investigate the upstart competitor's new technology. Having seen Ditto's product, 1-800-CONTACTS then went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user's face.

But here's the thing: 1-800-CONTACTS does not appear at all interested in licensing the patent to Ditto. Rather, it seems determined to put Ditto out of business. Period. So it's suing Ditto in federal court in Utah, hundreds of miles from Ditto's headquarters in California.

Yes, you read that right. First, the CEO went and saw the site, then sought out and bought a patent that could be used against the company (in this case, US Patent 7,016,824), then brought suit in a very inconvenient jurisdiction and, finally, isn't even entertaining the idea of licensing the patent. And, of course, the patent itself seems highly dubious in quality. Ditto thinks it would win the lawsuit, but spending what little money it has on litigation will almost certainly kill the company anyway. Even if it wins, it will likely lose by using up its money not on innovating, not on delivering a great service to people who want it, but on fighting a bully.

The EFF is asking for help in finding prior art for this patent, via StackExchange's prior art section, in the hopes that the patent can be invalidated quickly. In the meantime, though, shame on 1-800-CONTACTS for being an anti-innovation legal bully. Of course, this isn't the first time we've written about 1-800-CONTACTS doing dubious things against competitors. In the past, it's sued competitors for keyword ads, despite having lost similar cases and despite buying keywords on competitors itself. It seems that the company is willing to use the legal system to crack down on competition whenever it can, which makes it seem like a company worth avoiding when looking for any kind of corrective lens solutions.

from the the-scarlet-letter-meets-columbia-house dept

Being charged with a crime as a juvenile isn't supposed to haunt you for the rest of your life. In most cases, juvenile offenders can have their records sealed once they hit adulthood (18-21, depending on state law). There are some exceptions, varying from state to state -- certain felonies and most sex offenses are not allowed to be sealed.

While it's true that records can be sealed or expunged when someone turns 18, it's often too late in Washington.

Companies have contractual agreements with the state to be able to gather felony records in a mass download. Those companies then make the information available on the Internet. Landlords, employers and educational institutions can do a simple search and find the information.

Offenses committed by juveniles are being given a chance to live on well past their supposed expiration date. In these states, a youthful offender now has a chance to be punished for his or her mistake for years to come. And this "opportunity" to become a lifelong offender has a bargain basement price tag.

"About 27,500 records a year are sold and we only make $19,000 as a state in revenue off of it, so we're talking about 69 cents per name for a kid's future," [Barry Stober, executive assistant of the Washington State Commission on African American Affairs] says.

It's tough to turn your life around when employers running background checks are greeted with offenses that should have been sealed or expunged years ago. Stober relates the story of a teen arrested for joyriding who acquired his GED while spending two years in detention only to find himself turned down for financial aid and unable to get a job (despite earning a degree) thanks to being permanently marked a felon by background check companies.

When "checking out" a potential employee, tenant, student, the effort stops dead at the word "felon," if not at the fact that the person has a criminal record at all. There are too many young people looking for jobs, apartments, seats in college to spend too much time with the bad seeds. Nobody is going to make the effort to investigate the underlying offense, the circumstances, the person behind the crime. If there's a crime, there is another kid waiting behind him without a record.

This gives rise to a permanent underclass that will have constant problems getting an education, a job, a home, all for some dumb move made as a kid. Maybe even for something that should never have resulted in a conviction at all, but for lack of parental love and assistance, an assembly-line system and even judges looking to make their own buck off them. But once it's sold to some vulture business, it follows them forever. All for about 69¢ per child.

Washington is stacking the deck against its own future. Recidivism is always going to be an issue, but short-sighted moves like this make this behavior almost inevitable. A young adult who can't get a decent job or receive financial aid is going to look elsewhere for opportunity. If a life of crime seems to be the path of least resistance, the state has to take some of the blame for the outcome.

Stober's trying to fix this law and has started a Change.org petition aimed at stopping the sale and distribution of juvenile records. At the very least, Washington should limit what purchasers can do with the data, like Kentucky has done, limiting use to "evaluation, research or statistical activities" and requiring the purchasing entity to sign an agreement stating the information won't be abused. (Michigan can sell this data, although there doesn't seem to be any evidence that it has. There's currently nothing on the books prohibiting it from doing so. Juvenile arrest records are also available via a FOIA request.)

Better yet, Washington should just stop the selling of data altogether. It's one thing to make records available publicly on adult offenders. It's quite another to allow third parties to continue punishing former juvenile offenders for actions the state has effectively declared "never happened."

from the PR-takes-the-Fifth dept

The SimCity debacle that exploded all over the web in March has quietly faded into the background. EA's claims that the game was always meant to be a quasi-MMO and that servers were handling a majority of in-game calculations have become a lot less incendiary now that servers are handling the load competently. The outrage has faded, replaced with pockets of disgruntled users, most of whom are upset with advertising-as-DLC and major updates that make the experience worse.

Why did this fade so fast? One reason is the attention span of the web (heavily generalized, and I am including myself in this "web" group). With a million other things begging for attention, the flames sputter out and the pitchforks go dull. But there's more to this than the net's lack of focus. EA itself helped extinguish these fires by doing nothing more than shutting down its outgoing communication. John Walker at Rock, Paper, Shotgun dives into this "non-story" created by EA's PR team's decision to simply drop the discussion.

When RPS first broke the story [that servers weren't handling most of the calculations], only a few other gaming sites picked up on it. It was a big story, unquestionably, so why was it left alone by so many? That breaks down into two parts. Firstly, and most importantly, the story was based on an anonymous source. We of course know who the source is, and verified it until we were very comfortable running the story. But that wasn’t possible for other sites – they had the choice of running the story based on a “rumour” from RPS, or not at all. And that’s understandable – repeating rumours is often the gaming press at its worst, and with no means to verify our story, repeating it could have been risky. It could easily have led to legal threats being thrown all over. Which brings us to the second part – they needed some sort of confirmation, or at the very least a response, from EA to offer ‘balance’.

Not reporting the story couldn’t be immediately dismissed as capitulation, being in the pocket of EA, cowardliness, etc. (Not that it excludes it, of course.) What most sites would have done was immediately fire off an email to EA and Maxis asking for them to provide comment. We, of course, had done the same. And here’s where the power of silence played its first part.

EA and Maxis simply ignored all those emails. Sites may have received a, “We’re waiting for a response,” from their regional PRs, but that was it. And so if you’re running GamePow.com, and you’ve decided you can’t run RPS’s anonymously sourced story without giving EA a response, ta-da – no story on GamePow. And EA knows that.

EA's decision to go silent makes perfect sense. Anything it had said about SimCity's failings had been directly contradicted by players' experiences. Anything that wasn't instantly refuted by modders poking around in the code was couched in spectacularly clueless PR speak that gathered instant derision. At some point, EA wisely decided to cut its losses and simply freeze out the gaming press.

When RPS attempted to get a response from EA on its debunked claim that its servers were doing most the calculations, the freeze set in. On March 12th (the day the story ran), Maxis claimed a response would be arriving "shortly." Another non-response about the pending response arrived the next day. Walker and RPS didn't hear from anyone at Maxis for the next four days.

“No response was my fault not UK PR folks or Maxis. Not a PR tactic, just had to unwind the complex issues and gather right info”

Reynolds then tried to dodge making a statement by claiming EA didn't want to keep repeating the same information it had been handing out since last year's Game Development Conference (where it claimed the internet connection would only be needed to boot the game, at which point players could take their games offline). Walker pointed out that EA's story had actually changed several times since the GDC. At this point, the Maxis spokesman shut down communication, apologizing for the lack of response, but never actually bothering to respond.

EA/Maxis played it smart by simply refusing to comment on the stories. Once the (disastrous) PR efforts were shut down, all gaming sites could do was report their own observations without comment from the game's producers. Love or hate EA (most of us tend towards the latter), it realized something many entities that have tangled with the internet (and lost) haven't: if you don't give writers any ammo, they'll stop shooting.

Silence is a powerful weapon in the industry. The mad truth is, when it comes to gaming controversies, if you ignore it it will go away. This article is a fairly futile attempt to not let it, and to make sure our readers know that EA and Maxis never spoke to us, never responded to any of our questions, and never sent so much as a statement.

The corollary to the Streisand Effect is "the only way to win is not to play." Many entities fail to realize this. EA figured it out. All it had to do is sit back and let the internet entertain itself by pouncing on month's old statements and regurgitating the most recent missteps by the PR team. Many of those in the gaming journalism field still strive for accuracy and balance, but in doing so, they play right into the hands of recalcitrant developers and PR teams.

Silence is by far the most effective means of spreading silence. With a press so frequently under the spell of the belief that one must offer ‘balance’ to report anything, stories will simply go unreported if one side refuses to comment.

This is why some sites have devolved into little more than dumping grounds for press releases. This is all some companies are willing to throw the public's way, a strategy that buries controversy and ensures a "united front" of "journalism" that skews in a favorable direction. Walker says he has written this article to point out how EA froze the press out and got away with it, turning an antagonistic situation into nothing more than internet background noise. It sold over a million copies of an intentionally broken game and is now using its lack of interaction to pave over the ugliness in its recent past. Allowing a company to gloss over its failures with a finger over its lips is unacceptable. Here's Walker's advice to game journalists who are used to seeking comments before going to press.

[Seeking comment] effectively boils down to asking for permission to run a negative story about a company. Journalists need to pull their heads out of their arses and start having the integrity to run stories they know to be valid, and then asking the corporation for comment.

This doesn't mean publishing every wild rumour and running irresponsible articles based on little more than hearsay. What this does mean is that journalists should be confident enough in their own efforts (and research) to run unfavorable pieces without feeling a confirmation from the subject's PR team is needed before the post can be considered valid.

This is just as true with the non-gaming side of journalism. If the subject has refused to comment, state as much and move on. Silence is an effective weapon but it can be turned against those who wield it in hopes of muting criticism.

from the yeah!-wait,-what? dept

Cultural hit that it is, I suppose it's not surprising that we've talked several times about the HBO series Game Of Thrones, including its status as the most pirated show on television. I can't speak to the merits of the show, having given it up after the first episode, but it was encouraging to hear HBO talk about how wider distribution options could be used to combat piracy, even if their implementation was somewhat lacking. To the shock of no one, of course, these changes haven't immediately eradicated piracy of the show's episodes. To no one that is except the American ambassador to Australia, Jeffrey Bleich, who is apparently willing to throw his official weight around in favor of this one particular show.

See, it was on Bleich's Facebook page, the one that identifies him as Ambassador Bleich, where he posted a rant entitled "Stopping the Game of Clones."

"As the Ambassador here in Australia, it was especially troubling to find out that Australian fans were some of the worst offenders with among the highest piracy rates of Game of Thrones in the world," wrote Ambassador Bleich. "While some people here used to claim that they used pirate sites only because of a delay in getting new episodes here, the show is now available from legitimate sources within hours of its broadcast in the United States."

Er, okay. Perhaps I'm in the minority here, but the post would have seemed ho-hum had he not decided to come out so strongly in favor of one particular show. This isn't a screed against piracy in general, but against piracy of GoT in particular. Seems kind of strange, especially when he then explained how he understood why it was pirated in the first place.

"I realize that fans of Game of Thrones who have used illegal file-sharing sites have reasons," continued Ambassador Bleich. "They will say it was much easier to access through these sites, or that they got frustrated by the delay in the first season, or their parents wouldn't pay for a subscription, or they will complain about some other issue with copyright laws." Continuing, he added, "But none of those reasons is an excuse—stealing is stealing."

That's true, stealing is stealing. And infringement is infringement, and strawberry yogurt is strawberry yogurt. Unfortunately, stealing isn't infringement, and an American ambassador purporting to speak to Australians on our behalf should really know the difference. Add to that a misunderstanding, apparently, of how fans of the show who were initially spurned with delayed, inefficient, or non-existent legitimate ways to get the content aren't going to give up the better methods they found for consumption now that HBO is kinda-sorta providing them with slightly less delayed, slightly more efficient, slightly more existing methods and we have the full-blown makings of a confused diatribe by a public official over a single cable network show. Kotaku sums things up nicely.

This is swell and all, but doesn't he have more important things to worry about than Australians pirating Game of Thrones? He is a U.S. Ambassador. Like, a real one, nominated by the President of the United States. And he's talking about Game of Thrones on the internet. Your tax dollars at work!

The 2013 National Trade Estimate Report on Foreign Trade Barriers (NTE) is the 28th in an annual series that surveys significant foreign barriers to U.S. exports. This document is a companion piece to the President's Trade Policy Agenda published in March. The issuance of the NTE Report continues the elaboration of an enforcement strategy, utilizing this report, among other tools, in that strategy.

The U.S. pharmaceutical industry has expressed concerns regarding some EU and Member State policies affecting market access for pharmaceutical products, including nontransparent procedures and a lack of meaningful stakeholder input into policies related to pricing and reimbursement, including therapeutic reference pricing and other price controls.

Lack of transparency is also an issue for uranium, it seems:

The United States is concerned that nontransparent EU policies may restrict the import into the EU of enriched uranium, the material from which nuclear power reactor fuel is fabricated.

Public procurement is another area where transparency is cited as a big problem: countries singled out for a mention here include Bulgaria, the Czech Republic, Greece, Hungary, Italy, Lithuania and Slovenia.

Reading through the rest of the 400-page report, it's truly extraordinary to see transparency mentioned dozens of times as one of the US's key concerns with other countries around the world. Of course, that's deeply ironic, since the US was not only the lone holdout against ACTA transparency, and responsible for reducing what little transparency was present in the TPP negotiations, but it even refused to be transparent about its own positions on transparency. Hypocritical much?